The propriety and wisdom
Trump’s lawyers are starting to sweat.
Jones Day is the most prominent firm representing President Trump and the Republican Party as they prepare to wage a legal war challenging the results of the election. The work is intensifying concerns inside the firm about the propriety and wisdom of working for Mr. Trump, according to lawyers at the firm.
Doing business with Mr. Trump — with his history of inflammatory rhetoric, meritless lawsuits and refusal to pay what he owes — has long induced heartburn among lawyers, contractors, suppliers and lenders. But the concerns are taking on new urgency as the president seeks to raise doubts about the election results.
Aka “do we really want to be the lawyers who enable this crook to stage a successful coup?”
Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.
There’s another big firm in Ohio that’s doing the same thing and having the same issues.
Already, the two firms have filed at least four lawsuits challenging aspects of the election in Pennsylvania. The cases are pending.
The latest salvo came on Monday evening, when the Trump campaign filed a suit in federal court in Pennsylvania against the Pennsylvania secretary of state and a number of county election boards. The suit — filed by lawyers at Porter Wright — alleged that there were “irregularities” in voting across the state.
The allegations are based on nothing much, and the law firms know it; the target is public opinion. Trump is doing everything he can to poison the well.
A lawyer in Jones Day’s Washington office felt that the firm risked hurting itself by taking on work that undermined the rule of law. “To me, it seems extremely shortsighted,” the lawyer said.
Of course, lawyers and law firms work for people who defy the rule of law all the time. In an adversarial legal system everyone is entitled to a defense. But…when it’s the capo di tutti capi, who is trying to kneecap the rule of law itself, in his own self-interest…you can see the difficulty.
Trump is just waiting for all the cases to wind up in front of the supreme court. Just like the ACA. As soon as they get it, it will be gone. As soon as they get these challenges to the election, they instate him as president. It’s now the only game in town and it’s stacked. He wasn’t kidding when he said the election was rigged. It’s just that it’s rigged right up front. There’s a road and it leads to the supreme court that will give him anything he wants; anything that can be brought before the supreme court.
The US Constitution should be booked into the garage asap for a major overhaul.
“Trump’s lawyers are starting to sweat.” Must be climate change.
ACA case was heard today.
I’m actually fairly optimistic it will survive. To review the bidding:
1. SCOTUS previously upheld the ACA’s individual mandate by a 5-4 majority. Four justices said it was a valid exercise of Congress’s power under the Commerce Clause; Roberts disagreed but said it was valid under the Tax Clause.
2. Congress subsequently set the penalty for violating the individual mandate at zero. Opponents are now arguing that a tax set at zero is no tax at all, therefore the individual mandate is gone, and therefore the entire ACA should be thrown out.
3. It’s that last clause that is crucial. There’s a doctrine called “severability.” It basically means that, when a court finds part of a piece of legislation invalid, it doesn’t need to strike down the entire legislative scheme — you can “sever” the part that is invalid and uphold the rest. This is one of those doctrines that doesn’t map super-neatly onto ideological lines, at least not conservative/liberal ones. I suppose you could say it’s more of a judicial restraint vs judicial activism thing, although the phrase “judicial activism” is probably not the right one and has acquired a lot of baggage.
4. Anyway, the point is that the Court can easily say “the individual mandate can no longer be justified under either the Commerce Clause or the Taxing Power. However, that just means that the individual mandate is not valid. It does not require us to strike down the entire ACA.”
5. That kind of result will be very tempting to the Court, because it’s very much a win-win scenario for many of the justices. The three liberal-leaning justices will be on board because it saves the ACA. At least two of the conservatives may sign on because they can then say “we were right all along about the mandate,” which also reinforces the scaling back of the Commerce Clause and Tax Power that serves their broader objectives, while having the Court avoid taking the P.R. hit for voiding what has become a reasonably popular piece of legislation. As a special bonus, the Court can also (my prediction is in a concurring opinion from the likes of Kavanaugh) deliver a pious little lecture about how when the ACA first came up for review, even its proponents swore that the mandate was an essential piece of the whole legislation — that was part of the justification for it under the Commerce Clause. (This is true, by the way, not conservative revisionism.) Without the mandate, the argument went, the entire structure of the ACA collapses because of adverse selection and moral hazard and the “death spiral” of the insurance pool. It has turned out that is not the case — the mandate was never enforced, and now has a zero penalty, so it’s a paper tiger, and yet the insurance market survived. Stupid liberals! You never needed the mandate in the first place, you violated the precious freedoms of Americans to not buy insurance for no reason!
Oh, and apparently there’s a question of standing, too. That’s even more of a no-brainer for the conservative justices. Toss the case on standing, providing another conservative precedent on standing jurisprudence, while declining to weigh in on the merits at all. I’m seeing some speculation it could even be a 9-0. Although, naturally, that probably won’t stop the justices from writing a slew of opinions. (“Justice SO-AND-SO, concurring in the result, and concurring in the opinion of Justice WHOEVER except as to Parts III-C and III-D, joined by Justice THATGUY as to Parts I and II except as to footnote 3….”)
Screechy, it can really help to have a lawyer around to parse these points for us. I did pre-law back in my youth, but never progressed to the next logical step. Instead, I turned to biology, so my expertise lies elsewhere. There are so many fine points to so much of this, it’s easy to forget the ways justices can wiggle out of things, or into things.
I don’t see SCOTUS giving him whatever he wants… if GA or maybe Arizona was the only critical race, maybe, sure. We don’t even really know that FL in 2000 was actually “given” to George W., and we won’t, but throwing out two or three races by some magic means isn’t really on the table. I mean, really, what is SCOTUS gonna do? “The results in Pennsylvania are invalid because reasons and we have thereby negated them!” It’s what Lord Cheeto would like, certainly, but it’s not how the courts work.
What is on the table is a huge mess that Biden will be wading through in January.
Well, if they do throw out all those results, then these state’s-rights conservatives would be violating state’s rights. Of course, they really just mean state’s rights as Jim Crow (at least, once slavery was no longer on the table), Christianity, and patriarchy, probably with a good old fashioned dose of homophobia thrown in. State’s rights is the diaper they use to hide a lot of shit.
I’ve become much more cynical about the conservative justices on the Court than I used to be, but I still don’t think there’s any chance of them changing the outcome of the election.
As Blood Knight says, you really do need some kind of legal theory backed by evidence in order to prevail. So far, as I understand it, the GOP lawsuits fall into three categories:
1) Complaints about technical issues, like the number of poll watchers or how many feet they had to stand back. Even if proven (and some of them were such bullshit that the GOP lawyers had to admit it in court), this shouldn’t get them the relief they want.
2) Scattered anecdotes about supposed voter fraud. So far, most if not all of those allegations aren’t panning out upon scrutiny, and you can’t just show a few instances of voting improprieties — those happen in every election, usually for innocent reasons — you have to show enough to make a difference numerically.
3) The issue in PA that SCOTUS reserved the right to revisit previously, that of whether the PA Supreme Court had the authority to order an extension of the deadline for ballots to be received. Here they might actually succeed in getting some votes tossed, but it’s not enough to make the difference in PA.
But all else being equal, if Biden prevails in Arizona and Nevada, he has 270 anyway, Pennsylvania, North Carolina, Georgia, and Alaska all become moot and irrelevant. Let Trump have Pennsylvania, for all the good it will do him. Who cares. I don’t see what the big deal is about PA. I would wish that my state was relevant too, but after a recount, ultimately, Georgia won’t decide the election, and neither will Pennsylvania.
Also, what do they hope to accomplish, there is an infinitesimal chance Trump and Co. could manipulate a win in this election, and if they did, I can’t imagine what kind of hell there would be to pay. The outrage would be epic.
Right. Trump needs to overturn at least 3 states, and not all 3-state combos would work.
George Conway just tweeted that “[t]he way I look at Trump and his minions’ nonsense is that they’re like a bunch of drunks trying to take down a skyscraper with a blowtorch. I don’t think they have the remotest chance of succeeding, but I also don’t think we should allow them to start a fire while they try”
That sounds about right to me.
One “whistleblower” has admitted it was all lies.
I would advise the lawyers to get their fees in advance.
I liked this take – which says, Keep Calm and UNLESS SOMETHING TERRIBLE HAPPENS
https://www.thenation.com/article/politics/biden-victory-trump-lawsuit/